Central Administrative Tribunal - Madras
C Nagarajan vs Employees State Insurance Corporation ... on 7 March, 2023
2. The Internal Come (By Advorabs: Mis 6. | DATED THIS THE 3° DAY OF MARC CHT el THOUSAND TWENTY THREE PRESENT:
THE HON'BLE SHRL T. JACOB, MEMBER (A) THE HON'BLE SMT LATA BASWARAI PATNE, MEMBER () ioyonsod/2022 ae G. Nagarajan Gr Uf Branch Manager, ESI Corporation, Branch OF ice, Attur, Salem District, o» AbBigant (Advocate: Mis V. Vey Shankar) Versus i. Ragtonal Direct Emnloyess State | No. 143, Sherling F Chennai - 600 034.
nce Corporation (ESIC), Committees sosual Harassment (Rrogantion, Prohlistion (Consitubed under.
of Women at Work and Redressal) At Represented by | Employees State No. 143, Sterling | Chennai - GOOG 038. _Raspondant sing Officer G Indrs, HO & Corporation, Bugs 2 af ay {Promourded by Hon'ble Mr. T. Jacob, Member (A)) THs GA hes been fled by the soniicant under Sec.lo of the Agiministrative Tebunals Act, 1985 seeking the following nsiieis:-
{aC 202 -Admin-SHWWW «dated 29.06.2022 fonvarding ths oe rement of the Intemal Complaints Committee, vi. the 2nd respondent and the consequential order of (ie Ist respondent in HS No NoSI> [4 -140)}2021 Adme-ShWW dated 20,068.2022 and quash both the orders and Gass such offer arder or order as mey be deamed At. Ss. The bref of the case submi ted by the agolicant are as flask capacity that the appleant is working oresently as Branch Manager at Ath, Salem distict. The applicant has had an unblemished record of SAtisani AY conducted the proceedings suainst hin In brazen vidlat Rage Rah h?
service all these years. Applicant was Gansferred from Chennai offios to {. Acting on a aune Kalsivani. Respondent we the applicant to subnet explanation shoul Ms conduct. Apolicant sci rooresentation pointing out that even 2 copy of the complaint of Airs. Ralalvani was not Aimished fo Aim and raquested for copies thera! & aonears that tie os Stetements from several x esses between March and April & copies thereof not supplied fo Ge epolicant. On 7.9202) Apolcant was directed to appear before fhe ICC wis and respondent for aroun. Applicant demanded thet he must be furnished with the conles of the complaint and the statement of witnesses but they were not furnished. Report of (CC was ft the applicant on 290.8.2022- Simultaneously Imougned orier of reversion dated 29.6.2022 to the lawer y penally on the spplicant. Challenging We rained fo gonroach this Tribunal,
3. 'The Bonlicent hes sucht the aforesaid mile! (Inter sig, on the following grounds:-
i). 'The responcients anc Se Intemel Complaints Committee (CC) have \ of the onseadure:
set out under the Act and Rules 2012 and hence the entire proceedings Anarneenea culminating in the peport of the ICC and the order of cenally ans Hiegal and nudi and void and bes to bs declared as such.
4). Even a copy of the complaint made by the complainant M/s Kalgivart was not furnished to him despike recmests, © ig olfigatony on the part of the ICC and the resnandents to provide a capy of the complaint slong wit supporting documents, statements of witness cic give opportunity to him to file his oblections. However, in the present case even B copy of the complaint was not fienished fo Aim. Hence fH wos impossible for the applicant to explain fis conduct or defend Almeelf without kmowing whet actually the contents of Mle Complaint are.
Moreover, hus in contravention of the proceedings set out In Rule 7 of the Rules 2015 and rancers the very enquiry an empty forme Rane PEN AE SON < PATRONS, 2 this has caused serious prejudiced to the applicant and resulisd in serous miscarnlane of JUsICe.
him. Ef aposars Giet statements were obtained In March and Apr) 202% fram sbout 11 individugis but none of those were furshed to fhe applicant. In the absence of furnishing such statements, ( would Os umossible for the soplicant to defend or explain His conduct of cross te aE Seseeenes charge mers. Secondly, Sie examin wely, Thus the enting proosedings are legal and conesed to the principles of MOhuTs JUSUCS, ii. TRe Imougnedd order pe sed by the (st resnondent shows that me major penalty against the apolicant has been Issued as per Rule 14 of the CUS (OCA) Rules. The apolicant is advised to stehe that Chough reference & Rule 14 is made, the Ist resnoncient has failed fo conduct the proceedings in terms of Rule 14. In fect, the anplcant wes not even issued with a st af documents relled on, copy af complains, $ Ratem rants of witnesses ate. were not furshed. Thus, in every fsoecl, there has been serious infraction of fhe mandatory procedure set cul in Rude 14.
vj. The applicant submits (iat Inesmuch as @ major penalty of reduction im rank has been issued on Aim without following the srocedure set out under the Act and (he nes Samet IS IN contravention of Amici S11 cS) of the Constitution of India, WW). Further, the Ist respondent ected in extreme haste by immediately approving the recommendation of the IOC and fo straightaway impased the penalty of reduction in rank to the post of UBC on the applicant. Such an he action is in contrevention of the oreedure set out Under Section 15 of the 'wisi Rees ~e Sees Ror ty Act as per which where service rules exist, . Soprogriate action is fo be taken against the Individual anly in he Hobe of the provisions of the service rules available. In the present case, the applicant is covered by the CUSICCAS Rules which envisage holding of ful fledged departmental enquiry before ~ imposing oof any maior penalty, However, in the present case, circumventing the detailed procedure contemplated under the service rules, Ne respondents have commifted a grievous error in directly aging to revert Mie pelitoner fo the lower post of UOC. Such 9 srocedure is in contravention of {he provisions of the Act and Rules and also the service © runes of the respondent organisation and offends applicant's constitutional rights under Article 14 and 311 { (2) of the Constiution of India, a ¥E). The promencdings of the roncent conurities are flawed and | logs! and are im infringement of the procerlures set cut under the "Act and Sules". AS per Section 11 of the Act, enquiry shell "eid in accordance with the provisions of the service rules applicable to the employee. This departmental enquiry ought tO be held against an employee Ff it is decide against him. However, in the present case, lonoring the provisions of the service rules, the respondent commitise conducted a formality of an enquiry | af ging the applicant due, falr and reasonable opportunty fo defend Aimself, Thus the entt broceedings of the respondent committes ang witiated and deserves to bs set aside in toto. Wi), Most inportantly the co: numittee after concluding the sroceeding on LS.7.2021 has submitted | Sane Sort ane after & parod of one year Ls, any on 30.06,2022 In accomfance with Section 11 (3) of the Act is enquiry shall be completed within g perod of a0 days and the recat submitted within 10 days from the date of completion of arquiry end made available to the parties. In the present case It is obvious thet the ICC has taken Rs own aweet Hine ix ISH @ Gupy of the encuiry penort which is is winlation of the Hime sche & Sef ouf Supra and hence the entire ommcsedings stand vittieted, is). The Index to the report submitted by the end resporeient, ICC. shows that the total report nuns to 458 Bages, but only Oo) pages have mi TRS, again, reveals the Intent of the ae furushed to the app respondents to conduct the orsceedings - Ful materials, statements < iC has, Mus, caused senace ce & the applicant, resulting In gross miscarriage of justice.
Page Sol 8?
x}, A perusal of the report of the ICC would show that @s observations and opitions sre based on @ missppreciation and misreading of the avalsble evidence. The [CC has infermingigd the case of the snpicant and that of hye other individu ials without disclosing f them the real nature of the complaing. Us narrative aboears to De overignging and is conclusions are Hlogwal and perverse.
4. Leamed counsel for the applmeants Have relied on the following cedsions i support of their cont Cae Decision of the Hon' Ys of 2020 da ted DO.04 3093 in ase Man ranmankur ni ie University vs Orb Se Professor, he '3 pe ten {iS subrnite c that (9 Nicant joined ES! Corporation as Lower Division Clerk in 2009 and Gl promolsd os Upper Division Clark jn 3011 and subsequently Be ASSStGNt in [he year 2016. Durning She total senice period of 12 wears, th applicant has bean transferred io various branct Res Bad focal sped in the complaint dated 25.01 3021 given by Mrs, Ralalvani oy WS Jack of fAnnesuns RY), Sereatter complainant, the annlicant, because of ts Soon See! ®. AS stated by the witness during the IC devotion by duty, has heen transferred t Neliituppam anc reverted hack st Regional Office after 13 py r fafOepuly Director fey ESIC, Reg forming the Begional Office is the year 2OUS, used §5 wsit the Benefits Branch In Regional Office requlery, where the complainant is wo Dung the office hours, the exhibited lack of devotion to duty, exhihtt ard wherever gossible, the :
mroved and stated in fhe ioc ¢. besed on Me complaint cated 35.01 2034 Given by Ue complainant: to Appointing authority, the < petent suthority had di to canduct « byeiminary inquiry in thet fegard anc the same was com nducted by 3 Osputy Dinector on the basis of written compiging and inkeracton with hie complainant and same of fhe withesses. The said sraliny Neary Inquiry:
mcided thet there was a . ima facie case of sexual haras SQTEHE against complainant. Immediately, Sppointing suthonty Gansferred the applicant to SRO Salem thereby he was posted to Atte, Granch Office, salem (Annexure R32} on 38 A202) Bel, in order to sofe quand the WORER at work place par y (he complainant. Next day Le, on a6.0L.2021 the apolicant has subrnitted Ais s sel-explanation (Annee 23) Wyough e-mail enclosing the chateall histury between the complginant and one another male co-amployes end the same has been acdressed i lon, Welfare Association, and Administration Branch and alss to the Benefits ranch where the complainant w the above said e-mail dated 26.01.2001, the complainant sgain submitted e further complaint dated 28.04.2021 (Annexure Rd). 7 VRe applicant, having 12 years of service and belng Gr. TT Branch Manager Violated the coreluct niles and misused the official ma oO a eB aS ms Shs a eae os es a re s z fo.
S alicia! dealings and made allegations on the complainant che fame of the complainant so as to harags and threaten the cOMpaNANt wal possible ways, thenshy created mental agony fo the comp Her family members by calling fo comnlsinant's husband over shane and Mie same is proved In the Inquiry Report ¢ (Anmexure RS Ry fies caused 8 show-cause vntice dated 16.09.2091 to the Loe fed we & o3 45% "3 4 i, 35% £3 HO ae ce bd oy Soe:
es 2 eB oe ap.
pee $35 co £4 Tey WY SGans: he cosiplain SOG Inquiry committee Intleted the sroceedings agairet the apn' per CCS Rules, the applicant with an intention to dre hg on the proceedings > requested the ICC Presiding Officer to extend the date for oiving reply f feogip€ of show-cause 2021 and took leave for 15 days fom UL03.2021 to 14.03.2021. Thereafter, the somicant had submitted Ais eighorate explanation an 26.033 2021 affer a perind of 35 days from the (Annexure RS). Though the BPONCaNE Look more than ane month: FoF US days, the apricant oa unmcceptable explanations f) all the charges levied gqainst him. The applicant wents to divert the ICC Inquiry members by giving frelevant and false statements in his expian
8. The applicant ape]: hefore the [CC Committee on various MOXOSIONS and cross akanined the cornplgingnt and witnesses aS WES came by the conclusion that the ap:
on Nad indulged in stalking, harassing, iNimidating, character assassinating and intruding inte the privacy o nompiginant (Mrs. Kalsivan. The aonlicant also started harassing her Nushand who hed sernaingd calm fo safeguard his wifes msmufation. The applicant had not shown aay remorse or repentance for his behavior and justified his actions by saying that he was trying to cormect the morals 6 the complainant. Even in fant of IOC he WES repeatedly saying that he was only Gying bo save the cos ant and her family (Ansexure RP), The 10 Committee, consists of (he oresiding officer who iS working at a senior level SSSeEIEAS SSNS Syee F2 of 42 ag Specialist Doctor at ESIC PGIMSR anc Hospital, K K Nagar, Chennai - B00 078, in Us detailed report at various points opined about the applicant aS follows:
RS: an ean Gare Sapa ade ange BEE ; abv gence oad Mr Nagarsian Ged used fiihy, ebscene and language to abuse the complainant Mrs. Ralawan. He had indulged in character assassination of the complainant." (Annexure 88) i. Mr Nagarajan emotionally blackmailing of the complainant Mrs. Sgiaivant i. Mr. Nagarajan wes nonchalant and was not scared of administrative action fos. He was axtihite NG SOCIO Be (Annexure RO) ™ . Nagergian slowly increased hls harasement of Mrs. | Msiahants husband and when he started fo Get angry, Mr. Negaralan displayed his cheas and a intentisns by uttering the above SALemengs bo her musband.
Mr, Nagerajan intensified fis harassment of the cOMpIaiNgnr Mrs, Kalaivani,"
"Mr Nagarajan not only subjected Mrs, Kalalvant to extreme deg oF sexual Harassment he also severely harassed and tormented Nes. Kalgivant's husband who only wented to settle the matter amicably, 6 blooded socks path who wee anyone asho hapnens to Finally the ICC had arrived at a conclusion that the allegations against the applicant with regard to the sexual Harassment} had bean Proved and found guilty ;
ule 3-C oF COSi Conduct) Rules, 1064 and Sec 2(mand 3623 of SHUN NV CPPR) Ack. section 2{n} 1, Physical contact and advances i. Demand or request for secial fayours NH. Sexually coloured ROT rhs v. Unwelcome Physical, verbal, non-verbal conduct of Sexual nature i. Implied or axnliclé three of detrimental treatrient in employment es f. Implied or exc at SbOUl Her Orssent or future aMnloymeant Status v. Interference with her work, creating an intimidating, offensive, hostie work environment for her v. hurnlating treatment lkely to affect her health or safety, & The AciGional Cormmissioner & Segional OGisector Geinc uisciplinary authority in exercise of (he power conferred and by virtue of Raguiaton 1a¢2) of the ES! Corporation (Stall s cane oF Service) Reguiaton 1859 (as amended), after consilering the gravity of the at harasament and agony caused to the applicant, imposed the cenalty and issued ed the } penalty order wilh effect from 29.06.2022 after considering the recommendations meade by the sald Committee (Annexure B11), iD. The Respondents submit thet the OoPT Office Memorandum issuer! by the Government of Indie in F No. LIGUSS/2014-Fst ¢ AAT) cated 16.07 2015 has declared that the Complaints Oomumities setup for Inquiring Ai commlgints of sexual harassment shall be deemed to be the ING, Authority appointed by the Olisciplinary Authority as per Rule 14/5) of CCS (OCA) Rules (965 and accordingly the said Committee which conducted the ry under the ged Respondent had follaved the due prmosss as per the COCs (CCS) Rules snd Sexual Haressrent of Women Work place (Srevention, Prohibfion and Redressal) Act. 3618 in a fir manner on all reasonmble opportunities fo the apollegnt to de a AS Case S ES aNProonels socomymeyidahons as mer The 18 Respondent being the Disciplinary Authority Ked imoosed an fue penusel of the entire records pertaining aporopniabs punishment af So tre said Commitice report and also cons) img othe sant recommendations thersin ac > af relevent provisions of the CUS (cy cierasal of the OA, ii, Learned counsel for the respondents have relied on the following cecisions in support of their costenticns. {) Decision of the Central Administrative THbunel Alahabed in BA No. 33 of 2019 in GA no.iS0 of 2019 In the case of Kariesh Kumar Misra ve The Commissioner, Navodaya Vidhyalsya Samiti and Ors. sae.
WApura High Court In WRC clhes3 of 2021 N H) Oeelsinn of the Hos' Dated 17,05 2021 In the case of Smt.Rekhe Des vs The Union of India and Crs.
'V) Decision of the Hon'ble Supreme Court of India in Dated 19.10.2012 in the case of Meche Kotwal Lele and Ors vs Union of Tnedia in AIR 2075 oe iy} Decision of the Hon/bie High Court of Orissa in Dated 29.04.2020 In the case of Reshate Ch.Pande vs Sambainur University and Ors 262103) SLRAG?.
¥) Decision of (he Hon'ble High Court of Delhi in Oeted OS. 12 208 case of Rashi vs Union of India snd Ors, ik. The applicant has Hled peininder iS, Heard (he learned counsel for the respec sarties and ¢ pleadings and documents of records. i4. BectsS gre mot ih cisoube. If is seasn fram [he soqleation that the applicant has approached the Tribunal against the order of the Qiscintinary Authority and under the Rules, provision exists for anoeal against the order of the See Niey @uthonty. And, Section 20 af the Administrative Act mandates thet administrative remedies should be exhausted before Ag the Thhunal Administrative remedy js said to be exhausted the eooeal is (isd and the same disnosed of by the authority and if ant disposed, 8 pericd of six months pass after fling the appeal Umitetion fy then, as held by a seven judges Sench of the Hon'his se oF SS. Rathore ve State of Madhya Pradesh (1989) oe 7 SOU SSS wherein if has bsen held as under:-
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